IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
QUALITY ASSURED INC., T/A )
SERVICEMASTER OF BRANDYWINE, )
)
Appellant/Employer-Below, ) C.A. No.: N22A-05-012 SKR
)
v. )
)
BERNARD DAVID, )
)
Appellee/Claimant-Below. )
Upon Appeal from the Industrial Accident Board’s Decision Dated 05/09/2022:
AFFIRMED.
Nicholas Bittner, Esq., Attorney for Appellant/Employer-Below.
David Crumplar, Esq., Attorney for Appellee/Claimant-Below.
Rennie, J.
MEMORANDUM OPINION AND ORDER
Before the Court is an appeal from a decision1 of the Industrial Accident
Board (“IAB”) which granted compensation for additional medical expenses
allegedly incurred as a result of a 2008 work-related injury. For the reasons set forth
below, the IAB’s decision is AFFIRMED.
1
David v. Quality Assured Inc., IAB Hearing No. 1332427 (May 9, 2022) [hereinafter the “IAB
Decision”].
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Nature and Stage of the Proceedings
On December 12, 2008, while employed at Quality Assured Inc., t/a
ServiceMaster of Brandywine (“Employer”), Bernard David (“Claimant”) injured
his neck and low back in a compensable work accident. 2 Claimant has been engaged
in active treatment with his low back since the accident,3 which includes consistent
epidural injections.4
On November 10, 2021, Claimant filed a petition to the IAB seeking payment
of medical expenses for treatment rendered at Christiana Spine Center, incurred from
September 4, 2020 and ongoing, comprised entirely of injections directed to his low
back. On April 25, 2022, the IAB held a hearing on Claimant’s petition. On May
9, 2022, the IAB issued its decision granting the petition.5 On May 23, 2022,
Employer filed a timely appeal to this Court. The briefing is now complete and this
matter is ripe for the Court’s consideration and decision.
B. Summary of the Evidence
The evidence presented at the IAB hearing includes live testimony from
Claimant himself and testimony by deposition from both parties’ medical experts.
2
IAB Decision at 2.
3
Claimant has also received treatment for his neck. The instant matter, however, concerns solely
Claimant’s low back.
4
Id.
5
The IAB also granted Claimant medical witness fees and attorney’s fees.
2
Dr. Tony Cucuzzella, who is Claimant’s treating physician and board-certified in
physical medicine, rehabilitation and pain management, testified for Claimant. Dr.
Cucuzzella commenced treating Claimant in February 2009, which was a couple
months after the work incident, and has been seeing Claimant every several months
ever since.6 Dr. Cucuzzella testified that the treatment he has provided to Claimant
regarding his lumbar spine has not changed since 2009, which consists of typically
one to three epidural injections per year.7 As to recent treatment, Dr. Cucuzzella
testified that Claimant had one injection in 2019, three in 2020, and three in 2021.8
Dr. Cucuzzella opined that the injections received by Claimant are causally
related to the 2008 work incident because Claimant had not had any lumbar spine
injections before the incident and has been consistently receiving them at relatively
the same frequency since the incident.9 Dr. Cucuzzella also opined that the
injections are reasonable and necessary because they provide Claimant with relief
from incapacitating pain and they help Claimant function.10 Specifically, the
injections decrease inflammation in the spine caused by disc protrusion or
osteophytic bone spurring.11 Dr. Cucuzzella further testified that the need for the
6
Cucuzzella Deposition Transcript [hereinafter “Cucuzzella Depo.”] at 7:17-19, 8:24-9:2.
7
Id. at 9:9-14.
8
Id. at 10:13-15.
9
Id. at 10:19-22.
10
Id. at 12:22-13:1.
11
Id. at 11:1-4.
3
injections is not age-related or due to degenerative conditions because the frequency
at which Claimant has been receiving the injections has not increased over time. 12
Claimant also testified on his own behalf. Claimant, who is now seventy-two
years old and was fifty-eight at the time of the work incident, stated that he was in
“excellent” health before the work incident and that he had not been involved in any
prior work or motor vehicle accidents.13 Claimant stated that he started treating with
Dr. Cucuzzella and receiving injections in 2009. Claimant testified that he only
seeks injections when “the pain is bad” and the injections help relieve the pain to a
level of two, on a scale of one to ten.14 When asked how often he receives an
injection, Claimant testified that “by law I can only get maybe three a year.”15
Dr. Scott Rushton, a board-certified orthopaedic spine surgeon, testified on
behalf of Employer.16 Dr. Rushton opined that the injections received by Claimant
are not causally related to the work incident but rather attributed to Claimant’s pre-
existing degenerative conditions. Dr. Rushton specifically discussed the several
MRIs17 conducted on Claimant’s lumbar spine. Dr. Rushton testified that the first
MRI, which was done on December 31, 2008, demonstrated mild degenerative
12
Id. at 11:21-12:1.
13
IAB Hearing Transcript [hereinafter “Hr’g Tr.”] at 11:19-25.
14
Id. at 15:6-8, 15:18-19, 18:9-12.
15
Id. at 15:20-23.
16
Dr. Rushton examined Claimant regarding his lumbar spine on February 18, 2022. According
to Claimant, the exam lasted about ten minutes. Id. at 16:20-21.
17
Claimant had five MRIs in 2008, 2010, 2014, 2017, and 2019, respectively. See IAB Decision
at 5.
4
changes, which included mild disk bulges and a small disk protrusion causing mild
canal and foraminal stenosis and annular fissures.18 Dr. Rushton also testified that
the findings of the several MRIs are consistent with a typical degenerative
continuum and did not demonstrate any traumatic structural change to indicate an
aggravation that could result from a traumatic event.19 In addition, Dr. Rushton
pointed out that Claimant is going through radiation treatments for prostate cancer,
which may cause injuries and pain complaints to the musculoskeletal system and,
therefore, be a separate cause of Claimant’s low back pain.
Dr. Rushton also opined that the injections are not reasonable or necessary
treatment options to address Claimant’s complaints. He explained that the type of
injections received by Claimant generally should be targeting symptoms of radicular
pain radiating into a dermatomal distribution that can be clinically correlated to an
objective exam and/or MRI finding.20 A simple statement of pain in the leg,
according to Dr. Rushton, does not support a definitive diagnosis of radiculopathy
or require spine injections.21 Dr. Rushton pointed out that there was no radiating
pain down into either extremity noted during the doctor’s visits that Claimant had
both before and after the September 4, 2020 injection.22 Dr. Rushton acknowledged
18
Rushton Deposition Transcript [hereinafter “Rushton Depo.”] at 9:17-24.
19
Id. at 12:8-11, 12:19-22, 13:19-23, 14:9-11, 14:13-19.
20
Id. at 15:18-21.
21
Id. at 16:16-21, 17:3-6.
22
Id. at 17:23-18:1.
5
that, during the February 18, 2022 physical exam, Claimant reported fairly extensive
symptoms, including beltline pain, pain in the right hip radiating down the back of
the lower extremity, tingling in the right leg, left lower extremity pain, and left lower
extremity pins and needles.23 Dr. Rushton, however, stated that the physical exam
he conducted on Claimant’s lumbar spine was objectively normal and there was no
evidence of reproducible radiculopathy.24 Dr. Rushton commented that he could not
correlate the nature and level of pain reported by Claimant to any objective physical
exam findings or to the MRI scans.25
C. IAB Decision
The IAB accepted the testimony of Dr. Cucuzzella over that of Dr. Rushton
and concluded that Claimant is entitled to compensation for the medical expenses
with respect to the injections from September 4, 2020 and ongoing. The IAB found
that the injections are causally related to the work incident, relying upon the fact that
Dr. Cucuzzella has been overseeing Claimant’s care and administering injections to
Claimant’s low back since 2009, which was shortly after the work incident, and that
the frequency of the injections has not increased with Claimant’s age. The IAB also
cited as a fact supporting its conclusion that Employer had paid for injections
23
Id. at 20:20-21:1.
24
Id. at 21:11-22:11.
25
Id. at 22:24-23:4.
6
administered prior to those at issue.26 In determining that the injections are
reasonable and necessary, the IAB primarily relied upon Claimant and Dr.
Cucuzzella’s testimony that Claimant only seeks injections when his pain is
unbearable and that the injections relieve him of pain and help him to function.27
II. STANDARD OF REVIEW
This Court has appellate jurisdiction over final agency decisions under 29 Del.
C. § 10142. On appeal from an IAB decision, the Court’s review is limited to
determining whether the IAB’s conclusions are supported by substantial evidence
and are free from legal error.28 Questions of law are reviewed de novo.29 Substantial
evidence is “such relevant evidence that a reasonable mind might accept as adequate
to support a conclusion.”30 This Court will not “weigh the evidence, determine
questions of credibility, or make its own factual findings.”31 Moreover, the Court
26
The exact language in the IAB’s written decision is that “There is no evidence that Employer
has not paid for such injections.” IAB Decision at 10. Because this statement is made in the
context of IAB discussing Claimant starting to receive injections since 2009, and because the
injections from September 4, 2020 and thereafter are in dispute here, the Court assumes that the
IAB was referring to injections prior to 2020 when it stated that Employer had paid for those
injections.
27
The IAB specifically commented that “[i]f the injections were as inappropriate as Dr. Rushton
has testified, Claimant would not be experiencing such improvement.” Id.
28
Glanden v. Land Prep, Inc., 918 A.2d 1098, 1100 (Del. 2007).
29
Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009).
30
Id. (quoting Olney v. Cooch, 42 A.2d 610, 614 (Del. 1981)). See also Sheppard v. Allen Family
Foods, 279 A.3d 816, 826 (Del. 2022) (internal citations omitted) (“It is ‘more than a scintilla but
less than a preponderance of the evidence.’”).
31
Person-Gaines, at 1161 (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66-67 (Del. 1965)).
7
must “take due account of the experience and specialized competence” of the IAB and
the purposes of the Workers’ Compensation Act.32
III. DISCUSSION
Under the Delaware Workers’ Compensation Act, an employee is entitled to
receive compensation for injuries sustained in accidents “arising out of and in the
course of employment.”33 The injured employee has the burden to prove by a
preponderance of the evidence that the injury was caused by the work accident.34
When an employee has suffered an injury causally related to a work accident, he or
she is entitled to payment of expenses incurred for “reasonable and necessary”
medical services directly related to that injury.35 In the instant appeal, Employer
contends that the IAB committed both errors of fact and law, by applying a lesser
burden of proof to Claimant, relying upon a legal theory not raised by any party,
ignoring uncontradicted expert testimony and accepting factually insufficient
testimony without a medical or scientific basis. The Court will address each of these
contentions in turn.
32
29 Del. C. § 10142.
33
19 Del. C. § 2304.
34
Histed v. E.I. DuPont de Nemours & Co., 621 A.2d 340, 343 (Del. 1993) (internal citations
omitted).
35
19 Del. C. § 2322.
8
A. There is no evidence in the record that the IAB applied a lesser
burden of proof than required to Claimant’s petition.
Employer’s first argument on appeal is that the IAB applied a lesser standard
than required for Claimant’s burden of proof. Specifically, Employer takes issue
with one sentence in the IAB’s written decision, where the IAB stated that
“Claimant’s burden is relatively low.”36 Employer cited a recent case from this
Court, Fowler v. Perdue Farms, Inc,37 where the Court found that the IAB
committed a reversible legal error by applying essentially a “beyond any reasonable
doubt” standard in its analysis of facts, despite the IAB’s acknowledgement that the
preponderance of the evidence standard should apply.38
Here, the Court does not find that the IAB applied a less stringent legal
standard to Claimant’s burden of proof that renders its decision reversible. First, as
correctly pointed out by Employer, the IAB expressly stated that the applicable
standard of proof is by a preponderance of the evidence.39 In addition, unlike
Fowler, nothing in the IAB’s decision suggests that it actually applied a different
36
See IAB Decision at 10.
37
2022 WL 807327 (Del. Super. Mar. 16, 2022).
38
In Fowler, one of the issues in dispute was whether the employee claimant contracted Covid-19
from his workplace. The IAB acknowledged that the applicable standard of proof is by a
preponderance of the evidence. However, in its analysis of the underlying facts, the IAB found
that “there are a tremendous number of places where a person can contract Covid-19” and that “no
one can say for sure where [the employee] contracted [Covid-19].” The Court found that the “for
sure” language shows the IAB was essentially applying a “beyond a reasonable doubt” standard.
See id. at *7.
39
See IAB Decision at 9 (“As this is the Claimant’s Petition, Claimant has the burden to prove by
a preponderance of the evidence that the injury was caused by the work accident.”).
9
standard in making factual findings or reaching legal conclusions.40 Therefore, the
Court will not reverse the IAB’s decision on that ground.
B. The IAB should not consider past payment of medical expenses.
Employer next argues that the IAB incorrectly relied upon, at least implicitly,
a legal theory called “implied agreement” in reaching its conclusion. Specifically,
the IAB, in concluding that the injections at issue are causally related to the 2008
work incident, stated, among other things, that “there is no evidence that Employer
has not paid for such injections.”41 Employer contends that the IAB incorrectly
considered past payment of medical expenses in determining compensability of
present, unpaid bills. Particularly, Employer argues that the legal theory of “implied
agreement,” being the only valid legal basis for considering past payment of medical
bills, although the IAB did not explicitly use the term, was not raised by any party
in the below proceedings. Employer also argues that the IAB incorrectly shifted the
burden to Employer to prove the negative, while, even if an implied agreement was
properly raised, it would be Claimant’s burden to prove. Lastly, Employer argues
that there is no evidence in the record to support a finding under this legal theory.
40
The Court, however, does find that the IAB’s statement that Claimant’s burden is “relatively
low” to be vague and confusing. It is difficult for the Court to determine what the IAB means
there, but the Court also finds it unnecessary to further explore the puzzle. Without any record
evidence to the contrary, the Court finds it reasonable to conclude that the IAB applied the correct
standard in rendering its decision.
41
It is fairly clear from the context in the record, and both parties seem to agree, that “such
injections” refer to those injections Claimant received after the work incident but prior to
September 4, 2020.
10
The Court agrees with Employer that the IAB’s consideration of payment for
previous injections in determining causation or compensability of present, disputed
medical expenses is improper. As articulated by Employer, except for the one
sentence in the IAB’s decision, there is no place in the record where payment for
those prior injections was raised as an issue in this matter or even mentioned by any
party in the proceedings before the IAB. Considering an issue not raised by the
parties or fully developed in the record constitutes prejudice to Employer, let alone
using that to support a ruling in Claimant’s favor. Moreover, by stating that “[t]here
is no evidence” that those prior injections have not been paid, the IAB apparently
shifted the burden to Employer to prove that past payments have not been made. Not
only is the shifting of the burden of proof legally incorrect by itself, the statement
also suggests that the IAB assumed that past payments have been made. There is no
record evidence to support this assumption.
However, notwithstanding the above, the Court does not find that the IAB’s
incorrect consideration of past payments, standing alone, renders its whole decision
reversible. Employer claims that the legal theory of an implied agreement, based on
past payments of medical expenses, is the “primary, if not sole, basis for finding
causation” in this matter.42 The Court does not agree. It is apparent from the IAB’s
decision that it relied upon a variety of factors, primarily the testimonies of Claimant
42
Employer Opening Br. at 12.
11
and Dr. Cucuzzella, in finding a causal link between the injections at issue and the
2008 work incident. The single sentence regarding payment of past medical
expenses is embedded in the IAB’s discussion of the relevant evidence that was
introduced at the hearing and clearly not the sole basis that the IAB used to support
its finding. The Court also finds no indication that the problematic statement
somehow constitutes the primary basis for the IAB’s finding. As will be discussed
below, taking the statement in dispute out of the IAB’s reasoning process, its
conclusion is still supported by substantial evidence.43
C. The IAB’s decision is supported by substantial evidence.
Although framed as legal errors committed by the IAB, the Court finds that
the remainder of Employer’s arguments all relates to the IAB’s consideration and
weighing of evidence. Employer first questions the IAB’s choice of Dr. Cucuzzella
over Dr. Rushton, when faced with contrasting testimonies given by the two experts.
As alluded to by Employer, the Board is free to choose which expert it will believe
and rely upon.44 Although Employer is correct that Delaware has not explicitly
adopted the “treating physician rule,” under which a treating physician’s expert
opinion is granted more weight under the presumption that he or she is more familiar
43
See Davis v. Mark IV Transp., 35 A.3d 418 (TABLE), 2011 WL 6392950, at *2 (Del. Dec. 19,
2011) (“A Board's decision may be upheld if it rests upon substantial evidence after objectionable
evidence is removed from consideration.”) (internal citations omitted).
44
Miller v. Del. Psychiatric Ctr., 2013 WL 1281850, at *10 (Del. Super. Mar. 28, 2013) (“When
the Board is presented with varying expert medical opinions, it is free to accept or reject the
testimony, in whole or in part.”) (internal citation omitted).
12
with the condition of the patient, the IAB is still authorized to, and often does, find
the testimony of a treating physician more credible than that of a non-treating
physician, based on particular facts in a case.45
Here, in determining to accept Dr. Cucuzzella’s testimony, the IAB referenced
the fact that Dr. Cucuzzella has been overseeing Claimant’s care and administering
injections to Claimant for over ten years since the 2008 work incident. The IAB also
relied upon the nature of Claimant’s injury, the frequency and manner by which
Claimant seeks treatment for the injury, the fact that Claimant has been benefiting
from those injections, and that Dr. Cucuzzella’s testimony is consistent with
Claimant’s on those points. Therefore, it is inaccurate to claim that the IAB did not
cite “any valid justification for choosing Dr. Cucuzzella over Dr. Rushton,” as the
IAB actually did that in its decision-making process, although perhaps not in a
manner to Employer’s satisfaction. The IAB is not required to do more.
After questioning the IAB’s choice of expert, Employer engaged in an at-
length discussion asserting that Dr. Cucuzzella’s testimony is deficient and lacks any
“medical and scientific basis.” Employer pointed out that Dr. Cucuzzella’s entire
deposition testimony totals eleven pages. Employer claims that “there is no science”
behind Dr. Cucuzzella’s opinion that the injections are causally related to the work
45
Id. (“As fact-finder, the Board has the flexibility to make credibility determinations as to expert
witnesses.”) (internal citation omitted).
13
incident. Rather, Employer argues that such opinion is based solely on the fact that
Claimant did not have any injections before the incident. Employer also listed things
that are absent from Dr. Cucuzzella’s testimony which allegedly renders it “fatally
flawed.”46 As several non-exhaustive examples, Employer stated that Dr.
Cucuzzella failed to discuss certain things or use certain medical terms in his
testimony which, according to Employer, are “critical” to establish causation and
reasonableness. Employer also stated that Dr. Cucuzzella incorrectly based his
conclusion that the injections are reasonable and necessary solely on the ground that
they are effective in relieving Claimant of pain. Employer further stated that Dr.
Cucuzzella failed to address the risk of injections, a factor that must be taken into
consideration when analyzing the reasonableness and necessity of a treatment
option.
The Court finds it unnecessary to list every single purported deficiency in Dr.
Cucuzzella’s expert testimony, or to address them one by one, because they all fail
for the same reason, that is, Employer fails to explain why those alleged deficiencies
make Dr. Cucuzzella’s opinion fall short of substantial evidence to support the IAB’s
conclusion. Employer argues that basing causation solely upon the fact that
Claimant did not start to receive injections until after the work incident constitutes
46
Unsurprisingly, the factors allegedly absent from Dr. Cucuzzella’s deposition testimony, which,
according to the Employer, are critical in establishing a sound medical expert opinion, are all
present in Dr. Rushton’s testimony.
14
post hoc fallacy. But Employer fails to recognize that Claimant does not have to
proffer conclusive evidence, as long as he proves causation by a preponderance of
the evidence. Even Employer did not deny that the sequence of events here, i.e.,
Claimant starting injections after the incident, is relevant evidence with probative
value to the question of causation. In addition, Employer takes issue with the fact
that Dr. Cucuzzella’s testimony is devoid of certain medical terms, such as
aggravation, acceleration, traumatic, or MRI, but fails to cite to any authority that
holds those terms must be present in a medical expert’s opinion in a case like this.47
Employer also argues that the single fact that the injections were effective in
relieving the pain does not render them reasonable, and other factors, such as
rationale behind the medical intervention and its associated risks, must be taken into
consideration. But again, Employer fails to cite to any legal or medical authority
that designates these factors as required scientific or legal steps to establish
reasonableness. Rather, it appears that the only source that Employer relies upon in
justifying the necessity of using those factors in rendering an expert opinion is Dr.
Rushton’s testimony.
Based on the particular facts in this case, the Court finds it reasonable for the
IAB to adopt Dr. Cucuzzella’s testimony in its ruling. Having served as Claimant’s
47
In fact, after claiming that Dr. Cucuzzella failed to use a host of critical medical terms, Employer
then stated that “there are no ‘magic words’” with regard to a medical expert opinion. See
Employer Opening Br. at 16.
15
treating physician for about thirteen years, Dr. Cucuzzella testified to a reasonable
degree of medical probability that the injections at issue are causally related to
Claimant’s 2008 work incident and are a reasonable and necessary treatment
directed to Claimant’s particular condition and complaints. Importantly, Dr.
Cucuzzella also gave his reasons for those conclusions. The Court does not disagree
that Dr. Rushton’s deposition testimony, as compared to Dr. Cucuzzella’s, is not
only lengthier, but also seems to engage in a more detailed analysis in explaining his
opinion. The Court similarly does not disagree that, if presented to a different trier-
of-fact, it may well be that Dr. Rushton’s testimony would prevail in this “battle-
of-the-expert case”, as acknowledged by Employer at the very beginning of the IAB
hearing,48 However, unlike the IAB, the Court does not sit as a trier-of-fact and is
prohibited from making its own factual findings. It is notable that Employer has not
sought to strike Dr. Cucuzzella’s testimony or in any way limit it as lacking any
scientific or medical basis in the proceedings before the IAB. Employer
(understandably) disagrees with the IAB’s credibility finding and weighing of
evidence. However, the Court must defer to the “experience and special
competence” of the IAB in those aspects of its ruling and finds that, based on the
entirety of the record in this case, there is substantial evidence in support of the
IAB’s ultimate conclusion.
48
Hr’g. Tr. at 5.
16
IV. CONCLUSION
For the foregoing reasons, the Court finds that the IAB did not commit any
reversible legal error and its factual findings and legal conclusions are supported by
substantial evidence. Therefore, the IAB’s May 9, 2022 decision granting Claimant
compensation for additional medical expenses, as well as medical expert fees and
attorney’s fees, is hereby AFFIRMED.
IT IS SO ORDERED THIS 6TH DAY OF DECEMBER 2022.
_____________________
Sheldon K. Rennie, Judge
17